Patna High Court
Krit Yadav And Ors vs The State Of Bihar on 15 February, 2019
Author: Prakash Chandra Jaiswal
Bench: Rakesh Kumar, Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.785 of 2012
Arising Out of PS. Case No.-65 Year-1993 Thana- SINGHESHWAR District- Madhepura
======================================================
Sanjay Yadav S/o Satto Yadav R/o village-Raibhir, P.S- Shankarpur, District-
Madhepura.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
Criminal Appeal (DB) No. 313 of 2012
Arising Out of PS. Case No.-65 Year-1993 Thana- SINGHESHWAR District- Madhepura
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1. Krit Yadav @ Krit Noyadav
2. Mahendra Yadav
Both Son of Late Sukhai Yadav.
3. Amod Yadav S/o Late Satyanarayan Yadav.
4. Yogo Kamat S/o Late Nakchhedi Kamat.
5. Hanuman Kamat S/o Yogo Kamat.
6. Umesh Kamat S/o Late Buchai Kamat.
7. Hira Thakur S/o Late Vakil Thakur.
All R/o Village: Raibhir P.S. Shankarpur District-Madhepura.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
Criminal Appeal (DB) No. 321 of 2012
Arising Out of PS. Case No.-65 Year-1993 Thana- SINGHESHWAR District- Madhepura
======================================================
1. Babloo Yadav
2. Munna Yadav
Both S/o Janardan Yadav R/o Village- Raibhir, P.S.- Shankarpur, District-
Madhepura
... ... Appellant/s
Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019
2/32
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
Criminal Appeal (DB) No. 327 of 2012
Arising Out of PS. Case No.-65 Year-1993 Thana- SINGHESHWAR District- Madhepura
======================================================
Satto Yadav S/o Late Bahuri Yadav R/o Village-Raikhir, P.S. Shankarpur,
District-Madhepura
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In Criminal Appeal (DB) No. 785 of 2012)
For the Appellant/s : Mr. Y.C. Verma, Sr. Adv.
Mr. Ananat Kumar, Adv.
For the Respondent/s : Mr. Ajay Mishra, A.P.P.
(In Criminal Appeal (DB) No. 313 of 2012)
(In Criminal Appeal (DB) No. 321 of 2012)
(In Criminal Appeal (DB) No. 327 of 2012)
For the Appellant/s : Mr. Gaurang Chatterjee, Adv.
Mr. Pankaj Kumar Jha, Adv.
For the Respondent/s : Mr. Ajay Mishra, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
And
HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL)
Date : 21-02-2019
As the aforesaid four criminal appeals have
cropped up from the same judgment, hence, they are taken
together and disposed of by this common judgment.
2. Heard Mr. Yogesh Chandra Verma, learned
counsel assisted by Mr. Anant Kumar, learned counsel for the
Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019
3/32
appellant (in Cr. Appeal (DB) No. 785 of 2012), Mr. Gaurang
Chatterjee, learned counsel assisted by Mr. Pankaj Kumar Jha,
learned counsel for the appellants (in Cr. Appeal (DB) Nos.
313 of 2012, 321 of 2012 and 327 of 2012) as well as Mr.
Ajay Mishra learned Addl. Public Prosecutor in the aforesaid
four appeals.
3. The aforesaid four criminal appeals have been
preferred against the judgment and order of conviction dated
16.03.2012and order of sentence dated 21.03.2012 passed by Additional Sessions Judge-IV, (F.T.C), Madhepura in Sessions Trial No. 127 of 1994 arising out of Singheshwar P.S. Case No. 65 of 1993 whereby the learned trial court acquitted the accused namely, Janardan Yadav and Rambhajan Yadav of the charges levelled against them and convicted the accused Sanjay Yadav for the offence punishable under Sections 302, 148, 323/149 of the Indian Penal Code and Satto Yadav, Bablu Yadav, Krit Yadav, Amod Yadav, Yugo Kamat, Hanuman Kamat, Hira Thakur, Umesh Kamat and Mahendra Yadav for the offence punishable under Sections 302/149 and 323/149 of the Indian Penal Code and sentenced convict Sanjay Yadav to undergo life imprisonment and also slapped him with a fine of Rs. 5000/- under Section 302 of the Indian Penal Code and Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 4/32 further sentenced him to undergo R.I. for one year under Section 148 of I.P.C and R.I. for three months under Section 323 of the I.P.C. and sentenced convicts Satto Yadav, Bablu Yadav, Munna Yadav, Krit Yadav, Amod Yadav, Yugo Kamat, Hanuman Kamat, Hira Thakur, Umesh Kamat and Mahendra Yadav to undergo life imprisonment and also slapped them with a fine of Rs. 5000/- each under Section 302/149 of the Indian Penal Code and R.I. for three months under Section 323/149 of the Indian Penal Code and in case of default of payment of fine to further undergo S.I. for six months each.
4. The factual matrix of the case is that Singheshwar P.S. Case No. 65 of 1993 was instituted under Sections 147, 148, 149, 323, 324, 341, 342, 326, 307 and 302 of the Indian Penal Code against accused Satto Yadav, Sanjay Yadav, Janardan Yadav, Bablu Yadav, Munna Yadav, Satya Narayan Yadav, Mahendra Yadav, Krit Yadav, Amod Yadav, Yugo Kamat, Hanuman Kamat, Rambhajan Yadav, Hira Thakur and Umesh Kamat on the basis of fardbeyan of Satya Narayan Yadav S/o Sabudath Yadav recorded by S.I. Mrs. Mridula Kumari O/c P.S. Singheshwar on 11.06.1993 at 12:30 PM at village Rayvin with the allegation, in succinct that Tarni Yadav and Satto Yadav are own brother. As Tarni Yadav is Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 5/32 financially and physically weak, Satto Yadav always torments him with the help of his group people. As usual on 11.06.1993 at around 8:30 AM, Satto Yadav along with his son Sanjay Yadav and his associates, namely, Janardan Yadav, Bablu Yadav, Munna Yadav, Satya Narayan Yadav, Mahendra Yadav, Krit Yadav, Amod Yadav, Yugo Kamat, Hanuman Kamat, Rambhajan Yadav, Hira Thakur and Umesh Kamat armed with gun, farsa and arrow were slating and assaulting Tarni Yadav. In the meantime, cousin brother of the informant, namely, Sukhdeo Yadav arrived near the door of Satto Yadav from his field and seeing brawl intervened the same. Whereupon Satto Yadav making protest against his intervention and claiming him to be person of the opposite party and tied him with the peg and gave order to assault him. Responding the same, Munna Yadav assaulted on the head of Sukhdeo Yadav by means of farsa. When the informant and his son Rijendra Yadav rushed in his rescue, Janardan Yadav exhorted other accused persons to eliminate both of them. Whereupon, the informant and his son fled away and arrived at the door of Parmeshwari Yadav and started witnessing the occurrence from there. In the meantime, Janardan Yadav again gave order to assault them, whereupon Sanjay Yadav assaulted by means Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 6/32 of arrow which hit near neck of Rijendra Yadav. Sustaining injury Rijendra Yadav fell down and uttered to save him claiming that Sanjay Yadav had assaulted him by means of arrow and he succumbed to his injury after a short while cringingly. Then the accused persons left the scene. The villagers Narayan Yadav, Najo Yadav, Bhupen Yadav, Suresh Yadav and others rushed there responding hulla and witnessed the occurrence. The bone of contention is said to be the old animosity between the parties and pendency of several cases in the court between them.
5. The aforesaid case was investigated by the I.O. and after conclusion of the investigation, the I.O. submitted charge-sheet on 10.09.1993 against ten accused persons, namely, Satto Yadav, Sanjay Yadav, Satya Narayan Yadav, Mahendra Yadav, Krit Yadav, Amod Yadav, Yugo Kamat, Hanuman Kamat, Hira Thakur and Umesh Kamat under Sections 147, 148, 149, 341, 323, 324, 326, 307 and 302 of the Indian Penal Code. Subsequently, supplementary charge-sheet was submitted against Rambhajan Yadav, Janardan Yadav, Bablu Yadav and Munna Yadav on 22.07.1994.
6. On receiving the chargesheet and the case Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 7/32 diary and perusing the same, the learned Magistrate took cognizance of the offence against the aforesaid accused persons on 14.06.1993 and committed the case of all the accused persons to the court of sessions on 17.06.1993 and on commitment and after transfer finally the case came in seisin of the Additional Sessions Judge-IV, (F.T.C), Madhepura for trial.
7. Charge against accused Sanjay Yadav was framed under Section 302 of the Indian Penal Code while charge against accused Satya Narain Yadav, Krit Nrayan Yadav, Amod Yadav, Hanuman Kamat, Yugo Kamat, Hira Thakur, Rambhajan Yadav, Munna Yadav, Bablu Yadav, Janardan Yadav and Umesh Kamat was framed under Section 302/149 of I.P.C., and further charge against accused Satya Narain Yadav, Satto Yadav, Rambhajan Yadav, Krit Narayan Yadav, Yugo Kamat, Umesh Kamat, Hanuman Kamat, Mahendra Yadav, Hira Thakur, Amod Yadav, Munna Yadav, Sanjay Yadav, Bablu Yadav and Janardan Yadav was framed under Sections 148, 323, 342 and 307/149 of the Indian Penal Code. Charge was read over and explained to them by the court to which they pleaded not guilty and claimed to be tried. During course of trial, accused Satya Narayan Yadav passed Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 8/32 away on 20.11.2010, hence, proceeding against him was dropped. Thus, only thirteen accused persons faced further trial.
8. To substantiate its case, in ocular evidence, the prosecution has examined altogether eleven prosecution witnesses namely, Narayan Yadav as PW-1, Bhupendra Yadav as PW-2, Najo Yadav as PW-3, Suresh Yadav as PW-4, Upendra Yadav as PW-5, Sukhdeo Yadav as PW-6, Bijen Prasad Yadav as PW-7, informant Satya Narayan Yadav as PW-8, Dr. R.P. Yadav, who conducted autopsy of the cadaver of the deceased as PW-9, Dr. Krishna Ballabh Yadav, who had examined the injured as PW-10 and I.O. Mirdula Kumari as PW-11. The prosecution has filed and proved some documents by way of documentary evidence in the case.
9. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. The accused persons have also examined eighteen witnesses, namely, Yamuna Prasad as DW-1, Jai Prakash Yadav as DW-2, Shatrughan Prasad Yadav as DW-3, Kamal Nayan Yadav as DW-4, Ramsharan Yadav as DW-5, Upendra Prasad Mandal Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 9/32 as DW-6, Hari Kishore Jha as DW-7, Dinesh Prasad Yadav as DW-8, Satya Narayan Mandal as DW-9, Vinay Kumar Singh as DW-10, Lal Bahadur Yadav as DW-11, Upendra Prasad Yadav as DW-12, Satya Narayan Verma as DW-13, Shiv Dayal Sah as DW-14, Dev Narayan Yadav as DW-15, Chandra Kishore Yadav as DW-16, Anil Kumar Yadav as DW-17 and Indra Narayan Yadav as DW-18. The accused persons have also filed and proved some documents by way of documentary evidence in buttress of their case.
10. After hearing the parties and perusing the record, the learned trial court passed the impugned judgment and order of conviction and sentence as detailed in the earlier paragraph.
11. Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence, the convict Sanjay Yadav has preferred Criminal Appeal (DB) No. 785 of 2012, Krit Yadav, Mahendra Yadav, Amod Yadav, Yogo Kamat, Hanuman Kamat, Umesh Kamat, Hira Thakur have preferred Criminal Appeal (DB) No. 313 of 2012, Babloo Yadav and Munna Yadav have preferred Criminal Appeal (DB) No. 321 of 2012 and convict Satto Yadav has preferred Criminal Appeal (DB) No. 327 of 2012.
Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 10/32
12. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not.
13. It is submitted by learned counsel for the appellants that no occurrence took place at the door of Satto Yadav. As per the FIR, only informant and Rijendra Yadav rushed to the place of occurrence to intervene the occurrence, but the other witnesses examined by the prosecution have stated that they also rushed to the place of occurrence along with them which rules out witnessing of the occurrence by the said witnesses. It is further submitted that I.O. has not found any objective evidence like peg, blood mark, mark of violence, foot prints etc. at the place of occurrence. It has also not brought on record any objective evidence regarding the occurrence. Hence, the prosecution has miserably failed to prove the place of occurrence. It is further submitted that as per the prosecution case, the genesis of occurrence is slating and assaulting Tarni Yadav by the accused Satto Yadav and others. Tarni Yadav was assaulted near the house of Mahavir Paswan, but neither Tarni Yadav nor Mahavir Paswan has been examined by the prosecution and no plausible and convincing Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 11/32 reason has been ascribed by it for their non-examination. Hence, adverse inference shall be drawn against it. Hence, prosecution has utterly and miserably failed to prove the genesis of occurrence. It is further submitted that there is no eye witness of assault on Sukhdeo Yadav and the ocular evidence also does not stand corroborated by the medical evidence. As as per the prosecution case, Sukhdeo Yadav was assaulted by means of farsa by Munna Yadav, but doctor has not found any sharp cut injury on the head of Sukhdeo Yadav rather lacerated injury inflicted by means of hard and blunt substance. It is also submitted that PW-5 has stated about assaulting him by the accused persons and sustaining injury by him in the assault at the time of occurrence, but neither it is prosecution case nor any witness has supported the aforesaid statement of PW-5. Thus, the manner of occurrence also does not stand established by the prosecution. It is further submitted that doctor has found the injury on the person of Upendra Yadav and Tarni Yadav as simple in nature caused by hard and blunt substance. No independent witness has been examined by the prosecution and no plausible and convicting reason has been ascribed by it for their non-examination. It is further submitted that deceased Rijendra Yadav was criminal Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 12/32 antecedent person and he used to go on Hasheri and he might have been killed by some other person at some other place and the appellants have been falsely implicated in this case by the informant due to animosity as admittedly several cases are pending between the parties in the court. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case against the appellants beyond all reasonable doubt by adducing trustworthy and reliable evidence. Hence, the impugned judgment and order of conviction and sentence passed against the appellants by the learned trail court is liable to be set aside and the appellants are entitled to be acquitted.
14. On the other hand, learned APP for the State advocating the correctness and validity of the impugned judgment and order of conviction and sentence, submitted that the informant has supported the prosecution case in toto and other witnesses including the injured witnesses have also corroborated the prosecution case. The ocular evidence also stand corroborated by the medical evidence and learned trial court correctly appreciating the facts and evidence on record has rightly passed the impugned judgment and order of conviction and sentence which is liable to be upheld and these appeals are shorn of merit and are liable to be dismissed. Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 13/32
15. From perusal of record, it appears that to substantiate its case, the prosecution has examined altogether eight material witnesses in the case. Out of them, PW-2 (Bhupendra Yadav) and PW-5 (Upendra Yadav) happen to be hearsay witnesses of the case as PW-2 has stated in paragraph 4 of his cross-examination that he has given statement in the case as per learning the same from the informant and PW-5 has stated in paragraph 3 of his examination-in-chief that he learnt from villagers that the accused assaulted Rijendra Yadav by means of arrow, resultantly, he died. In paragraph 15 of his cross-examination, he has further stated that on the date of occurrence, he had not seen the occurrence at the door of Satto Yadav. In paragraph 18 of his cross-examination, he has stated that he had not witnessed any injury on the person of Sukhdeo Yadav on the date of occurrence and no brawl with Sukhdeo Yadav had taken place on the said date. In paragraph 21 of his cross-examination, he has further stated that he had not seen happening of occurrence against the son of Satya Narayan, namely, Rijendra. While as per the case of the prosecution, when Sukhdeo Yadav has rushed to intervene the brawl between Tarni Yadav and Satto Yadav, on the order of Satto Yadav, Munna Yadav gave him farsa blow on his head at the Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 14/32 door of Satto Yadav inflicting head injury to him and in the course of escaping, on the order of Janardan Yadav, Sanjay Yadav assaulted Rijendra Yadav by means of arrow inflicting injury near his neck. But, as per the account of said witness, he has neither seen any occurrence at the door of Satto Yadav nor seen any injury on the person of Sukhdeo Yadav and not witnessed any occurrence with Rijendra Yadav. Moreover, from perusal of statement of PW-5 given in paragraph 3 of his examination-in-chief, it appears that he has advanced altogether different case than prosecution. As there is no such case of prosecution about assaulting Tarni Yadav by Mahendra Yadav by means of farsa and succumbing to injury by Tarni Yadav in the occurrence and also there is no such case of assaulting PW-5 (Upendra Yadav) by Mahendra Yadav by means of farsa and lathi on his head at the door of Satto Yadav. But, PW-5 has stated in paragraph 3 of his examination-in-chief that Mahendra Yadav assaulted on the head, leg and hand of his father Tarni Prasad Yadav by means of farsa, resultantly, he died. Mahendra also assaulted on his head by means of farsa and lathi at the door of Satto Yadav. More so, in the said para he has further stated that he had learnt the occurrence of death of Rijendra Yadav by assaulting Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 15/32 him by means of arrow by the accused from the villager, but he has neither disclosed the name of the villager nor any of the villager has come forward in corroboration of divulgence of the aforesaid facts to PW-5. Thus, for want of corroboration, the aforesaid statement of PW-5 is also not admissible in evidence even as hearsay witness of the case. Moreover, PW- 5 has stated in paragraph 6 of his cross-examination that at the time of occurrence, the accused persons, he and his father Tarni Prasad Yadav were present at the place of occurrence and non-else was present there. The aforesaid statement of PW-5 rules out the entire prosecution case of assaulting Sukhdeo Yadav by Munna Yadav by means of farsa and Rijendra Yadav by Sanjay Yadav by means of arrow giving chase and also rules out presence of informant and other witnesses at the place of occurrence at the time of occurrence.
16. From perusal of testimony of PW-6 (Sukhdev Yadav), it appears that he also happen to be hearsay witness regarding assault upon Rijendra Yadav as in paragraphs 1 and 2 of his examination-in-chief, he has stated that after sustaining farsa blow, he fell senseless and regained sense after 2-3 hours and found himself at his door. After regaining sense, he listened about assaulting Rijendra Yadav by Sanjay Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 16/32 Yadav by means of arrow. In paragraph 8 of his cross- examination, he has further stated that after regaining sense, his two sons, namely, Jawahar and Bhup Narayan were present near him, who divulged him about factum of elimination of Rijendra Yadav, but he has not stated about divulgence of the name of the assailant of Rijendra Yadav to him by the aforesaid two sons. Moreover, Jawahar Yadav and Bhup Narayan Yadav have not corroborated the factum of divulgence of the aforesaid occurrence by them to PW-6. Hence, for want of corroboration aforesaid statement of PW-6 is not admissible in evidence even as hearsay witness. Moreover, PW-3 (Najo Yadav) has stated in paragraph 4 of his cross-examination that he had not witnessed Sukhdeo Yadav (PW-6) at the place of occurrence at the time of occurrence. The aforesaid statement of PW-3 also rules out presence of PW-6 at the place of occurrence and sustaining injury by him. Albeit, PW-6 (Sukhdeo Yadav) is said to be one of the injured of the case and is said to have sustained farsa blow on his head given by Munna Yadav on the exhortation of Satto Yadav at the door of Satto Yadav after tying him with the peg, but as per account of PW-3 (Najo Yadav) as given by him in paragraph 4 of his cross-examination he had not seen Sukhdeo Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 17/32 Yadav at the place of occurrence at the time of occurrence and as per the account of PW-5 (Upendra Yadav) as given by him in paragraph 18 of his cross-examination, he had not seen any injury on the person of Sukhdeo Yadav (PW-6) and there was no brawl with Sukhdeo Yadav on the said date. Moreover, PW-6 has stated in paragraph 8 of his cross-examination that he was given farsa blow by its sharp edge and from the front. But, from perusal of injury report of PW-6 marked as Ext- (3/1) and testimony of Dr. Krishna Ballabh Yadav (PW-10), who had examined the said witness, it appears that doctor has found one lacerated wound of the size of 1 ¼ " x 1/6" x scalp deep on the forehead and one bruise of the size of 2"x2" on the posterior aspect of right elbow. Both simple in nature and caused by hard and blunt substance. Thus, the doctor has not found any sharp cut injury on the head of said witness. In view of the vital contradictions between his ocular testimony and medical evidence and in view of the aforesaid aspect of the case, the aforesaid testimony of PW-6 (Sukhdeo Yadav) about sustaining farsa blow by him in the occurrence at the hand of Munna Yadav appears to be quite doubtful and not worth credence and reliable.
17. Though, from perusal of testimony of PW-1 Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 18/32 (Narayan Yadav), PW-3 (Najo Yadav) it appears that they have made an abortive bid to support the prosecution case by stating in their respective examination-in-chief in consonance to the prosecution case that at the time of occurrence, PW-1 (Narayan Yadav) along with Rijendra Yadav, Najo Yadav, Giro Yadav had rushed at the door of Satto Yadav and witnessed assaulting Sukhdeo Yadav by Munna Yadav tying him. After his arrival, Satya Narayan Yadav also arrived there and on quizzing about assault by Satya Narayan Yadav, Janardan Yadav exhorted to catch him hold and assault, whereupon accused persons gave them chase. Then they rushed at the door of Parmeshwari Yadav and witnessed from there that on exhortation of Janardan Yadav, Sanjay Yadav gave arrow blow which hit the neck of Rijendra Yadav and Rijedra Yadav died instantly on the spot sustaining arrow blow. Preceding to his death, Rijendra Yadav uttered that Sanjay had given him arrow blow. But, the said witnesses happen to be on inimical terms with the accused persons as PW-1 (Narayan Yadav) has stated in paragraph 6 of his cross-examination that Satya Narayan Yadav (informant) had lodged a case of assault against the accused persons bearing Case No. 14/85 in which they were acquitted. He, Najo and informant Satya Narayan Yadav were Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 19/32 witnesses in the said case. In paragraph 33 of his cross- examination, he has further stated that he is also an accused in the case lodged regarding murder of wife of Satto Yadav. He has been enlarged on bail by the Hon'ble High Court in the said case. While PW-3 (Najo Yadav) has stated in paragraph 2 of his cross-examination that Kamleshri Yadav happens to be own brother of accused Rambhajan Yadav. Kamleshri Yadav had lodged a case against him and others bearing No. 43/93 which is pending in the court of Sri. R.N. Verma. Satya Narayan Yadav (informant) has also lodged a case against accused persons bearing Sessions Trial No. 32/93 in which he is the witness and moreover, PW-1 (Narayan Yadav) happens to be man of the informant as in paragraph 8 of his cross- examination, he has stated that he is the witness of all the cases lodged by Satya Narayan Yadav (informant). More so, from perusal of testimony of PW-1 (Narayan Yadav), it appears that in paragraph 1 of his examination-in-chief, he has stated that responding hulla, he arrived at the door of Satto Yadav along with Rijendra Yadav, Najo Yadav (PW-3) and Giro Yadav (not examined) and Satya Narayan Yadav arrived there after their arrival, but PW-3 Najo Yadav has not corroborated the aforesaid statement of PW-1 of arrival at the Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 20/32 door of Satto Yadav along with PW-1 rather he has stated in his examination-in-chief that responding hulla, he alone arrived at the door of Satto Yadav. Thus, the aforesaid contradictory statements of PW-1 and PW-3 rules out their presence at the place of occurrence at the time of occurrence and witnessing the occurrence by them. Moreover, as per the prosecution case and statement of informant PW-8 (Satya Narayan Yadav), the witnesses including PW-1 had arrived at the place of occurrence responding hulla after departure of the accused persons committing occurrence. But, PW-1 (Narayan Yadav) has stated that Satya Narayan Yadav (informant) had arrived at the door of Satto Yadav after arrival of him, PW-3 and Giro Yadav there. Thus, the aforesaid vital contradiction between testimony of PW-1 and PW-8 also rules out their presence at the place of occurrence at the time of occurrence and witnessing the occurrence by all the aforesaid witnesses.
18. PW-4 (Suresh Yadav) though has also made an abortive bid to support the prosecution case by stating in his examination-in-chief in consonance to the prosecution case as discussed by me hereinabove, but from perusal of testimony of said witness, it appears that as per his examination-in-chief responding hulla, he along with Satya Narayan Yadav Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 21/32 (informant), Rijendra Yadav, Rajendra Yadav and Nagendra Yadav had arrived at the door of Satto Yadav and witnessed the occurrence. But, in quite contradiction to the aforesaid statement of PW-4, PW-8 (Satya Narayan Yadav) has stated in his examination-in-chief that responding hulla, only he and his son Rijendra Yadav (deceased) had rushed at the door of Satto Yadav. He had not taken the name of PW-4 (Suresh Yadav) as his companion. Hence, the aforesaid aspect of the case rules out the presence of PW-4 at the place of occurrence and witnessing of occurrence by him. As per statement of PW-4 given by him in paragraph 1 of his examination-in-chief, Sanjay Yadav gave arrow blow to Rijendra Yadav which hit the neck of Rijendra Yadav. But, in quite contradiction to his aforesaid statement, I.O. (PW-11) in paragraph 36 of her cross-examination has stated that PW-4 had divulged him about throwing arrow by Sanjay on the group. Though PW-4 in paragraph 3 of his cross-examination has vented his inability to resurrect his memory about giving said statement to the I.O. in an apparent bid to avoid the aforesaid contradiction in his said statement. Moreover, PW-4 (Suresh Yadav) has stated in paragraph 3 of his cross-examination that he had divulged to the I.O. that on making hulla by Sukhdeo, Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 22/32 he rushed there along with his group member where he found Sukhdeo lying on the ground senseless. Aforesaid statement of PW-4 completely rules out witnessing of the occurrence of assault upon Sukhdeo Yadav by Munna Yadav and upon Rijendra Yadav by Sanjay Yadav as he had arrived at the place of occurrence after sustaining injury by Sukhdeo Yadav and falling his senseless and he had stated about throwing arrow by Sanjay Yadav on the group and not assaulting Rijendra Yadav in specific. Moreover, the said witness happens to be own man of the prosecution party as in paragraphs 19 and 20 of his cross-examination, he has stated that he was witness in the case bearing Sessions Trial No. 81/2007 lodged by Tarni Yadav regarding murder of his son.
19. PW-7 (Bijen Prasad Yadav), who happens to be son of Tarni Prasad Yadav has stated in his examination-in- chief that on the date of occurrence at around 08:00 AM, there was wrestling between him and Sanjay Yadav over uprooting of bamboo. Thereafter, he had rushed to his house and arrived at bamboo clump along with Punches, his father and brother Upendra Yadav. The Punches settled the score. Then they arrived at the house of Mahavir Dealer from there. Sanjay Yadav, Mahendra Yadav, Amod Yadav, Yugo Mandal made his Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 23/32 father and brother Upendra Yadav senseless by assaulting them. Mahendra Yadav assaulted on the head of Upendra Yadav by means of farsa and Amod Yadav assaulted on both the hands of his father by means of lathi, then the accused persons made good their escape towards North. Thereafter, at the door of Parmeshwari Mandal, Sanjay Yadav assaulted Rijendra Yadav by means of arrow, resultantly, he died, who was witnessing the occurrence. The aforesaid statement of PW-7 happens to be in quite contradiction to the statement of the informant and prosecution case. As as per the statement of the informant and prosecution case, on the date of occurrence at around 08:30 AM, the informant and his son Rijendra Yadav had arrived at the door of Satto Yadav responding hulla and witnessed Satto Yadav tying Sukhdeo Yadav with the peg by means of dhoti. Other accused persons named in the FIR were also present there armed with gun, farsa and lathi. In the meantime, his cousin brother Sukhdeo Yadav arrived there and intervened the occurrence, whereupon Satto Yadav made exhortation to assault him. Responding the same, Rambhajan Yadav, Yugo Kamat, Satyanarayan Kamat, Umesh Kamat, Hira Thakur caught hold Sukhdeo and stripped of his dhoti and vest and tied him with the peg by means of his dhoti. Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 24/32 Thereafter, on the order of Satto Yadav, Munna Yadav assaulted Sukhdeo Yadav by means of farsa on his head and above the right eye. Then, the informant and his son Rijendra Yadav made protest against the assault. Whereupon, Janardan Yadav gave order to eliminate them and accused persons gave them chase. On chase, they escaped on the door of Parmeshwari Yadav and again on the order of Janardan Yadav, Sanjay Yadav gave arrow blow on the neck of Rijendra Yadav, resultantly, he died on the spot. PW-7 (Bijen Prasad Yadav) has also not stated about intervention of the occurrence by Sukhdeo Yadav, tying him with the peg by his dhoti by Satto Yadav and assaulting on his head by Munna Yadav by means of farsa on the order of Satto Yadav. He has also not stated about escaping of the informant and Rijendra Yadav from the door of Satto Yadav on chase given by the accused persons. Though, in his examination-in-chief, the said witness has stated that Mahendra Yadav assaulted on the head of Upendra Yadav by means of farsa and Amod Yadav also assaulted on both the hands of his father by means of lathi in the occurrence, but in paragraph 17 of his cross-examination, he has candidly stated that he had not seen any injury on the person of his father Tarni Yadav and brother Upendra Yadav Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 25/32 on the said date. The aforesaid aspect of the case indicates that literally PW-7 has not witnessed the occurrence.
20. From perusal of testimony of informant PW- 8, it appears that he has also made an abortive bid to support the prosecution case by stating in his examination-in-chief in consonance to the prosecution case as alleged in his fardbeyan as adumbrated hereinabove. But, as per the aforesaid case of the prosecution as adumbrated in the fardbeyan of the informant, the accused persons were slating and assaulting Tarni Yadav by means of lathi. In the meantime, his cousin brother Sukhdeo Yadav arrived there and intervened the occurrence, then the accused persons caught hold Sukhdeo Yadav and tied him with the peg by his dhoti, and on the order of Satto Yadav, Munna Yadav assaulted on his head by means of farsa inflicting injury to him followed by other occurrence. Thus, assaulting Tarni Yadav by the accused persons happens to be genesis of the occurrence. But, in quite contradiction to the aforesaid prosecution case, the informant PW-8 has stated in paragraph 11 of his cross-examination that he had witnessed Tarni Yadav on the date of occurrence at 2-3 PM after the occurrence. The aforesaid statement of the informant goes to shatter very root of the genesis of the occurrence. As per the Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 26/32 prosecution case and statement of the informant as given in his examination-in-chief Satto Yadav had tied Sukhdeo Yadav with peg by his dhoti at his door, but in quite contradiction to the aforesaid case, the informant has stated in paragraph 39 of his cross-examination that Sukhdeo Yadav was tied in the western room of Gohal (cowshed). There is no case of the prosecution that sustaining injury Sukhdeo Yadav fell senseless. But, the informant has stated in paragraph 39 of his cross-examination that Sukhdeo Yadav (wrongly written as Satto Yadav) was senseless in the Gohal (cowshed) at the time of giving them chase by the accused persons. Thus, the aforesaid statement of the informant happens to be in quite contradiction to the prosecution case and his statement given in his examination-in-chief and in view of aforesaid vital and material contradiction between the prosecution case and statement of informant inter se, his testimony does not appear to be worth credence and reliable and it does not inspire my confidence to hold conviction of the appellants relying on the same.
21. From perusal of record, it appears that PW-1 (Narayan Yadav) happens to be own man of the prosecution party and is also having inimical terms with the accused Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 27/32 persons. PW-2 (Bhupendra Yadav) happens to be cousin nephew of the informant. PW-3 (Najo Yadav) is on inimical terms with the accused persons. PW-4 (Suresh Yadav) is the brother-in-law of the informant. PW-5 (Upendra Yadav) is the son of Tarni Yadav and alleged injured of the case and person of the prosecution party. PW-6 (Sukhdeo Yadav) is the cousin brother of the informant. PW-7 (Bijen Prasad Yadav) is also son of Tarni Yadav and person of the prosecution party. PW-8 (Satya Narayan Yadav) is the informant himself and they happen to be interested witness of the case. It is settled principle of law that testimony of interested witnesses should not be discarded outrightly rather it should be scanned and scrutinized carefully. But, on careful and cautious scanning and scrutinizing the testimony of the aforesaid witnesses as discussed by me hereinabove, I find that the testimonies of the aforesaid witnesses are not worth credence and reliable due to aforesaid reasons and do not inspire my confidence to hold the conviction of the appellants relying upon the same.
22. From perusal of the prosecution case as adumbrated in the fardbeyan, it appears that after falling down and death of Rijendra Yadav sustaining arrow injury at the hand of Sanjay Yadav and departure of accused persons from Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 28/32 the place of occurrence, on hulla, PW-1 (Narayan Yadav), PW- 2 (Bhupendra Yadav), PW-3 (Najo Yadav) and PW-4 (Suresh Yadav) and others had arrived at the place of occurrence and witnessed the occurrence, but barring the aforesaid witnesses who are not reliable and worth credence, no independent witness has been examined by the prosecution and no plausible and convincing reason has been ascribed for their non-examination. Hence, adverse inference is drawn against the prosecution and it creates serious doubt about the prosecution case.
23. As per the prosecution case, there are three places of occurrence, first is the bamboo clump of Satto Yadav and Tarni Yadav, second is near the house of Mahavir Paswan Dealer and third is the door of Parmeshwari Yadav where the entire occurrence took place and there were numbers of the accused persons, who had tied Sukhdeo Yadav with the peg on the door of Satto Yadav by means of his dhoti by stripping it off. Informant PW-8 in paragraph 34 of his cross-examination has stated that as the place of falling of Rijendra Yadav i.e. the door of Parmeshwari Yadav, not much blood was fallen meaning thereby that some blood was fallen on the aforesaid place, but I.O. in paragraphs 15 and 16 of her cross- Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 29/32 examination has stated that she has not mentioned about finding of blood on any of the place of occurrence in the case diary. She has also not mentioned about finding of any mark of violence, physical feature and foot prints at the place of occurrence in the case diary. She has also not found any peg and dhoti of Sukhdeo Yadav at the place of occurrence. Thus, no objective evidence has been brought on record by the prosecution.
24. PW-7 (Bijen Prasad Yadav) in paragraph 19 of his cross-examination has stated that son of Satya Narayan Yadav, namely, Rijendra Yadav used to join Hasheri. He has explained Hasheri as to go along with the people as Sipahi in his help taking money from him. The aforesaid statement of PW-7 indicates that the deceased Rijendra Yadav was criminal antecedent person. I.O. PW-11 in paragraph 45 of her cross- examination has stated that deceased Rijendra Yadav was accused in G.R. Case No. 909/93 lodged under Section 307 and other allied Sections of the I.P.C. He was also accused in Singheshwar P.S. Case No. 100/87 lodged under Sections 143, 341, 353, 379 I.P.C. The aforesaid statement of the witness and aforesaid aspect of the case indicates that Rijendra Yadav was criminal antecedent person and used to go in Hasheri to Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 30/32 take possession of the land taking money from the concerned person.
25. From perusal of record, it appears that FIR was registered on 11.06.1993, but the aforesaid FIR was sent to the court after two days i.e. 13.06.1993 without ascribing any plausible reason for the aforesaid delay in sending the FIR to the court which creates serious doubt about the prosecution case.
26. As per the prosecution case itself, there is old animosity of the informant with the accused persons and several cases between them are pending in the court. Informant (PW-8) in paragraph 5 of his cross-examination has stated that Kamleshri Yadav happens to be brother of accused Rambhajan Yadav. Kamleshri Yadav has lodged criminal case against him under Section 307 I.P.C. vide Sessions Trial No. 43/93 preceding to the occurrence under hand. In paragraph 43 of his cross-examination, he has further stated that G.R. Case No. 982/79 lodged by accused Yugo Kamat regarding dacoity and theft of cattle against him has been decided in his favour. Aforesaid prosecution case and statement of the informant indicates that there is animosity between the informant and the appellants. Animosity cuts both the edges. Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 31/32 But in view of the aforesaid inconsistent, unreliable and not worth credence testimony of the witnesses, non-corroboration of the ocular evidence by the medical evidence, not bringing on record any objective evidence of the case, non- corroboration of the occurrence by any independent witness of the occurrence and delay in sending the F.I.R. to the court, false implication of the appellants at the hand of the prosecution party due to aforesaid animosity cannot be ruled out.
27. Having regard to the facts and circumstances of the case and in view of the discussions made by me hereinabove, I find and hold that the prosecution has utterly and miserably failed to bring home the charges levelled against the appellants beyond all reasonable doubts by adducing convincing, cogent, consistent and worth credence evidence. Hence, the impugned judgment and order of conviction and sentence passed by learned trial court against the appellants is set aside and the appellants are acquitted of all the charges levelled against them. As the appellant Sanjay Yadav of Cr. Appeal (DB) No. 785 of 2012 is in custody, he is directed to be released forthwith, if not wanted in any other case whereas the rest of the appellants are on bail, they are Patna High Court CR. APP (DB) No.785 of 2012 dt.21-02-2019 32/32 discharged from the liability of the bail bonds. Accordingly, the aforesaid four Criminal Appeals are allowed.
( Prakash Chandra Jaiswal, J) (Rakesh Kumar, J) I agree.
(Rakesh Kumar, J) rohit/-
AFR/NAFR AFR CAV DATE 14-02-2019 Uploading Date 21-02-2019 Transmission Date 21-02-2019